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What will happen to the refugees and asylum seekers that fled Ukraine? Addressing the threat of legal limbo after temporary protection ends

19 грудня 2023

After millions of people fled to the EU following Russia’s invasion of Ukraine, Council Directive 2001/55/EC was activated for the first time in more than 20 years. Temporary protection was designed to protect not only Ukrainian nationals and their family members, but also people recognised as stateless and people granted international protection in Ukraine (see Article 2 of Council Implementing Decision 2022/382). When forced to flee, however, these particularly vulnerable categories face barriers to protection in the EU. These people’s documents may not be recognised by Member States, or they may lack the documents required of third-country nationals. States may insist that asylum seekers and refugees provide the national ID of their country of origin, which is held by authorities in Ukraine: they cannot travel to retrieve it (due to a lack of travel documents).  

Many asylum seekers who found themselves in Ukraine when the full-scale war broke out had been waiting for months or years for a decision due to Ukraine’s dysfunctional asylum procedure. Whereas people with international protection documents are explicitly included in the scope of temporary protection, people who were seeking asylum are much less likely to be protected. They are not specifically included in the scope: rather, Member States can choose to offer temporary protection to people who were legally residing in Ukraine and cannot return safety to their country (or can instead offer “adequate protection under national law” – Article 2(2) of Council Decision 2022/382). On these grounds, some asylum seekers have received temporary protection, but most have been redirected to the asylum procedure or remain without status.

Temporary protection currently lasts until 4 March 2025. After this date, temporary protection holders must either access another legal status in the EU Member State they reside in, or return to Ukraine if – and only if – the hostilities have ended (Article 21 of Council Directive 2001/55/EC). Non-Ukrainian refugees and asylum seekers, even if they have received temporary protection so far, risk being excluded from national statuses offered when the Council Directive 2001/55/EC expires. Further, they risk being returned to their country of origin, or to Ukraine (while conflict persists), or being held in detention. Those who did not succeed in obtaining temporary protection are in an even more frightening situation: they may be undocumented, or unable to access an asylum procedure. Currently, no EU-wide approach has been announced that would offer harmonised and durable legal status to the some four million people currently protected by temporary protection.

In this blog, we explore how four possible EU-wide options for post-TPD status would impact the rights of asylum seekers and refugees who fled Ukraine (both those who benefit from temporary protection and those who did not obtain temporary protection).

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